Lone Candle

“At the governor’s urging, Florida’s Republican-dominated Legislature is pushing to weaken state laws that have long protected journalists against defamation suits and frivolous lawsuits. The proposal is part DeSantis’ ongoing feud with media outlets like The New York Times, Miami Herald, CNN and The Washington Post — media companies he claims are biased against Republicans — as he prepares for a likely 2024 presidential bid.

Beyond making it easier to sue journalists, the proposal is also being positioned to spark a larger legal battle with the goal of eventually overturning New York Times v. Sullivan, the landmark 1964 U.S. Supreme Court ruling that limits public officials’ ability to sue publishers for defamation, according to state Rep. Alex Andrade, the Florida Republican sponsoring the bill.”

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“the proposed bill goes further than simply decrying media bias. Free-press advocates call the measure unconstitutional and suggest it could have far-reaching consequences beyond major media outlets.
“I have never seen anything remotely like this legislation,” said Seth Stern, director of advocacy for the Freedom of the Press Foundation. “I can’t say I have seen every bill ever introduced, but I’d be quite surprised if any state Legislature had seriously considered such a brazen and blatantly unconstitutional attack on speech and press freedoms.”

He added: “This bill is particularly remarkable since its provisions have the vocal support of a governor and likely presidential candidate.”

DeSantis’ office said he “will make a decision on the merits of the bill in final form if and when it passes and is delivered to the governor’s office.””

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“Andrade’s proposal incorporates many of the elements DeSantis called for during the roundtable, including:

— allowing plaintiffs who sue media outlets for defamation to collect attorneys fees;

— adding a provision to state law specifying that comments made by anonymous sources are presumed false for the purposes of defamation lawsuits;

— lowering the legal threshold for a “public figure” to successfully sue for defamation;

— repealing the “journalist’s privilege” section of state law, which protects journalists from being compelled to do things like reveal the identity of sources in court, for defamation lawsuits.

Stern said 49 states and several appellate circuits recognize a reporter’s privilege against court-compelled disclosure of source material and stressed that it’s essential for people to be able to speak to reporters without risking their jobs or freedoms.

“Journalists do not work for the government and it’s none of the government’s business how journalists gather news,” he added.

Andrade, however, said the privilege language in his bill would not allow a judge to force a journalist to reveal an anonymous source, but removes existing protections if they decide not to.”

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““The law protects journalists from being ‘compelled’ by judges to disclose anonymous sources, but if a journalist has been sued for defamation, and wants to avoid liability, this section makes clear that they cannot claim a special privilege to avoid disclosing the source of the defamatory information and also avoid liability,” Andrade said.

Critics of the bill took issue with the section about attorneys fees, saying it could add a financial incentive to file defamation lawsuits and erode the laws preventing retaliatory lawsuits filed to silence criticism. Florida, like other states, has anti-SLAPP (strategic lawsuits against public participation) laws designed to help stop frivolous lawsuits.

“One of my largest concerns with the bill is the rolling back of the anti-SLAPP protection for defamation defendants,” said Adam Schulman, a senior attorney with the Hamilton Lincoln Law Institute, which advocates for free markets, free speech and limited governments. ”That’s just moving in the wrong direction.”

He said beyond large media companies, some of which have legal teams, the changes could affect the “ordinary guy” who leaves an “unfavorable Yelp review.”

“At one time, it was not considered ‘conservative’ to advocate for turning on the spigot to all sorts of troll-like civil litigation that will line the pockets of bottom-feeding plaintiffs’ lawyers,” Schulman said.

Stern said the new bill would leave those protections “toothless.” Under most anti-SLAPP laws, individuals can recover attorneys’ fees if they can show they were sued in retaliation for criticizing the government.”